Jonathan Moylan has spent 7 years fighting the expansion of coal mines in Australia. Will jail be the thing that stops him?

NEWCASTLE, Australia — Jonathan Moylan refers to the Hunter Valley in New South Wales, Australia as his backyard. It also happens to be a near continuous 60-mile stretch of wall-to-wall coal mines sutured together by a railroad leading to the world’s largest coal export terminal in Newcastle. Moylan, who grew up in Newcastle, has ridden this train countless times, and he points out coal mines along the way with a calmness that belies the fact that he’s spent the last seven years fighting against their expansion. Or that he could soon be spending up to ten years in jail for his latest effort.

Moylan is heading northwest to the Liverpool Plains, or as the mining industry refers to it, the Gunnedah Basin. After two centuries of coal mining in the region the industry’s recent rapid expansion has led mining companies farther and farther inland in search of new coal deposits. In 2012, coal exports from New South Wales were worth $13.9 billion, the lion’s share of which was generated in the Hunter Valley region. In Newcastle a fourth coal export terminal is planned that will allow the harbor to double the amount of coal it currently exports, around 120 million tons a year.

The Gunnedah Basin represents the next frontier. Last year Moylan, 25, took this same six-hour train ride to a town called Maules Creek to protest the expansion of one coal mine and the addition of two new mines. He and a rotation of other activists set up a makeshift camp where they lived alongside the existing mine to try and bring attention to what was happening.

In one such effort Moylan issued a press release in January purportedly from the ANZ Bank withdrawing a loan from a Whitehaven Coal. The release got picked up by the media and turned into a major hoax that wiped $314 million from the value of Whitehaven Coal, owner of the Maules Creek mine, although the share prices recovered after the ruse was revealed.

A five-month investigation ensued in which a corporate watchdog flew out to the camp four times, Moylan’s laptop and phone were extracted for evidence and he was called down to Sydney for compulsory questioning. Then on July 23, Moylan was granted unconditional bail after being charged with making a false and misleading statement under section 1041E of the Corporations Act. The matter will return to court on September 3. He faces a maximum penalty of ten years imprisonment or a fine of up to $765,000, or both.

At the same time, Whitehaven Coal is being investigated for possibly providing false or misleading information to obtain an approval of a mining project. The argument rests on the basis that the decision to approve the Maules Creek mine was made too quickly and not all factors were given due consideration. Of particular concern is the quality of the “offsets” Whitehaven had promised to set aside in return for being allowed to clear up to six square miles of forest classed as “critically endangered.” The Maules Creek Mine is proposed to be in Leard State Forest, which is populated by endangered white-box gum trees. Moylan and others argue that there is no feasible offset, or replacement, for this region because the white box forest doesn’t exist anywhere else. At-risk fauna in the forest include the iconic koala and 33 other threatened species.

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Moylan on the day of his July 23 hearing. Rick Laird, who’s family the Leard Forest is named after and who still lives in the community, stands in front of the microphone. CREDIT: Australian Broadcasting Corporation

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Moylan, 25, has an angular face, big ears, and deep-seated, penetrating eyes that add heft to his otherwise bright demeanor. His fingernails are uncut and dirty and his position of choice seems to be squatting and reading something. On the train ride back out to the camp for the one-year anniversary in early August he reflected on the reasoning behind his actions.

“It’s been on my radar for a long time that if you keep standing up to the industry you can end up in jail,” Moylan, who’s been arrested about a dozen times for other direct, non-violent actions such as blockading and locking himself to machinery, said. “But the impacts of mining on communities and forests, and the part it plays in getting us closer to runaway climate change, they worry me more. A jail sentence is limited, but the impacts of an open cut coal mine are permanent and there’s no way to reverse them. I don’t think it’s going to be last time someone faces lengthy jail sentence for act of civil disobedience.”

Role of Civil Disobedience

Moylan during a brisk morning.

And it’s not the first, which raises the bigger question of the role civil disobedience should or will play when it comes to confronting climate change. In the U.S. the high-profile case of Tim DeChristopher, who in 2008 outbid everyone at an oil and gas lease in Utah with $1.8 million that he didn’t have, garnered much attention — especially after he was sentenced to 21 months in jail.

At his sentencing hearing, DeChristophersaid, “the reality is not that I lack respect for the law; it’s that I have greater respect for justice. Where there is a conflict between the law and the higher moral code that we all share, my loyalty is to that higher moral code.”

In a January column about Moylan, Clive Hamilton, an Australian public intellectual and author of several books on climate change, wrote:

“To environment groups it’s been apparent for some years that the traditional methods of campaigning have been woefully inadequate in securing a political response anywhere nearly proportionate to the threat posed by global warming. For those open to the implications of the scientific warnings, a sense of despair can take over when they see once again the failure of governments to protect the future wellbeing of their citizens and the extraordinary power fossil fuel corporations exercise over government decisions.”

Hamilton goes on to say that perhaps Moylan and DeChristopher are pioneering a new phase of climate campaigning that might be dubbed “virtuous malfeasance” — hostile actions motivated by the public good and aimed at damaging a company’s interests. A new form of civil disobedience practiced by a market-savvy generation of young activists.

While the form of Moylan’s actions may be new, he sees them as the oldest method of political expression around. “It’s like back in the middle ages when a jester would dress up as the king and take the piss out of him. Unfortunately this time the share market was affected, and the share market is God.”

Moylan’s Lawyer, John Sutton of Armstrong Legal in Sydney, compared Moylan’s actions to taking a stand against the firm belief in the cornucopian principle of economics: That as society evolves, technology will evolve to protect it.

“What’s the motivation here?” Sutton said in a phone interview. “As I understand it the motivation here is to save an environment that’s unique. Many people believe that the free market will monitor and protect, but what about things like birds and trees with no free market value? The market doesn’t work in this case. It gives way to short term gain and greed.”

The existing Boggabri open-pit coal mine in Leard Forest, adjacent to the site of the proposed Maules Creek mine.

On Site

The Maules Creek Mine protest camp, where Moylan spent most of nine months, is set up just across the road from the Leard State Forest. What began as just a few tents in a year has developed into a small village with several solar powered lights, an Internet connection, a kitchen area and even a pizza oven. A mix of seasoned activists and locals make up the majority of the constituents.

Murray Drechsler and Moylan during the one-year anniversary celebration.

Murray Drechsler, who co-founded the camp with Moylan, has been involved in a number of efforts to protect forests. Amongst other responsibilities, such as giving local tours, he currently manages social media, including the group “Front Line Action On Coal.”

“I fell in love with this place when I first arrived,” Drechsler said while petting his three-quarters dingo dog, Dubi. “Something about this forest just grabs you, it’s very spiritual. And then bang, you can be staring at a big overburden heap in front of a huge hole all the sudden.”

Clifford Wallace, a local farmer who’s been in the area for three decades, spends about half his nights at the camp, which often only has a few people around. He and other locals said that dust, dropping water tables, incessant noise, increased traffic and elevated farm labor prices were some of their main concerns about the new mine, aside from the obvious environmental degradation.

Before even breaking ground a mine can tear community fabric apart, as the debate over jobs and income versus local externalities often goes unresolved. For every farmer like Wallace who decides to put up a fight there’s another that sells their land to the mine and gets the hell out of Dodge. Or rather, dodges their way out of hell.

“Living next to an open cut coal mine is pretty much hell on earth,” Wallace said. “Nobody wants to live next to one, it’s very dusty and dirty.”

Clifford Wallace, a local farmer.

Community Impacts

Even in the coal industry’s traditional stomping grounds of the Hunter Valley, community efforts over environmental and social concerns are starting to make headway. As the New York Times recently reported, Bulga, a town in the Hunter Valley, “is at the center of a legal dispute that could reshape the regulatory environment of a national economy heavily dependent on natural resource extraction.”

In the dispute, the state of New South Wales and the mining giant Rio Tinto are appealing a ruling that blocked the expansion of a nearby open-pit coal mine. According to the Times, “If the appeal succeeds, the mine expansion will proceed as approved by the state last year. If it fails, it could set a precedent that favors the environmental interests of local communities over the economic interests of state governments. That would upend a system that has traditionally given primacy to the interests of large mining companies.”

If it were up to Moylan all stories about coal mining in the region would be about the community and human impacts. Instead, he’s become the showpiece of the movement, spawning the group “Stand With Jono” and a similarFacebook group with over 2,500 likes. This is in part for his legal troubles and in part for the “blatantly obvious” reason that coal companies see a benefit to having a young activist as the face of the “anti-coal extremist movement.”

“The mining industry hates me, they bring me up all the time,” Moylan said. “They like to say people like Jonathan Moylan want to drive Indians and Chinese into energy poverty by denying their access to cheap coal. Somehow I doubt that the mining industry in Australia lies awake at night thinking about living standards in India and China. Call me a conspiracy theorist, but I think they’re more concerned about their bottom line.”

While camping for months alongside coalmines or blockading machinery may be one of Moylan’s techniques, he’s also very intellectual, and has thought deeply about each action he takes and the reaction it causes. With the India and China example he went on to explain that in terms of geography the closer you live to a power plant, the less likely you are to get any power from it. So these power stations in developing countries are really serving the demands of heavy industry that in turn pollute waterways, cause health problems for locals and are, in the end, actually a driving source of poverty.

The camp on the day of the one-year anniversary.

In the fake press release Moylan sent out it said that ANZ was withdrawing its loan because, “We want our customers to be assured that we will not be investing in coal projects that cause significant dislocation of farmers, unacceptable damage to the environment, or social conflict.”

Whether in rural India or Australia, Moylan believes that coal companies will get their comeuppance, and it will start where the impacts are felt first and foremost — at the community level. A lot of people have contacted him saying they’ve closed their accounts with ANZ bank, and he believes that he’s helping set patterns for carbon-sensitive investment.

“Just in the last month the World Bank, the U.S. Ex-Im Bank and the European Investment Bank agreed to stop funding almost all new coal-fired power stations,” Moylan said. “Goldman Sachs reports that the window for investment in thermal coal is drawing to a close. China is capping coal use. Japan, Australia’s biggest coal customer, has a big push for renewables.”

Rule of Law

Because of this pressure coming both from above at the global level and below at the community level, Moylan thinks Australian mining companies are in a rush to extract all they can, and in doing so are trying to create undue confidence for their investors.

He also attributes this mining rush to the close-knit relationship between government and the mining industry. In the instance of Whitehaven Coal, its chairman, Mark Vaile, is former Deputy Prime Minister of Australia and former leader of the National Party of Australia. Whitehaven’s lead lobbyist, Liam Bathgate, is the Prime Minister of New South Wales’s former chief of staff.

This is where he sees the importance of the white-collar criminal offense that he’s currently being charged with as actually playing a role.

“I think the Corporations Act that I’m being charged under is actually pretty important,” Moylan said. “People charged under that section of the act should be punished to the maximum extent possible because we don’t want to see a court system that’s only there to lock up small-time, petty criminals. We don’t want to see corporate directors making millions by duping everyone else. I think Whitehaven Coal deserves a hell of a lot more scrutiny than they get. These people are recalcitrant law breakers.”

Moylan can list off a number of instances in which Whitehaven Coal has broken the law aside from the current investigation regarding Maules Creek mine. These include illegally dumping contaminated pit water, breaching conditions of approval and telling their stakeholders that the mine would be producing coal within six months when the New South Wales Department of Planning had told them it was going to take two years.

Moylan pointing out elements of the mine.

“I would think they were making false or misleading statements in breach of Section 1041E of the Corporations Act,” Moylan said.

“But what the hell do I know.”

For now, Moylan remains the only person ever charged under section 1041E of the Corporations Act. Both Moylan and Whitehaven Coal will soon get their day in court. But considering the slow reaction time of government and the degree to which fossil fuel companies hold influence over the powers that be (or simply that the powers that be in government and industry are the same), what they do outside of court may prove to be more impactful. It is here in the small towns across Australia where community members still hold sway, where local environmental challenges dovetail with climate change concerns, that the stakes are the highest.

“My biggest worry has always been climate change,” Moylan said. “But for many people what’s driving them against coal expansion is the loss of community or local air pollution.”

“But if we’re more than doubling size of world’s largest export port, at a point when science is telling us we need to leave most of coal in the ground, then what’s my retirement gonna look like?” Moyland continued. “We’re really well placed to be most powerful agents of change in the world by living here. It starts in my own hometown of Newcastle. In my own backyard.”